Is an Egg a Person?

Valerie Wells on the controversy leading up to Mississippi's historic vote on the "Personhood Initiative"

Under Mississippi's recently defeated Personhood amendment, this ovum would be only moments away from having all the legal rights of a human being.

EDITOR'S NOTE: On Nov. 8, Mississippi defeated down the proposed "Personhood Initiative," which would have declared that a fertilized egg has all the rights of a human being. Several days before, when polling declared no certain outcome to the vote, the Jackson Free Press ran this story about the people for and against "personhood" for fertilized ova.

Atlee Breland picked up her three young children from preschool and drove home to Brandon, Miss. A self-employed computer programmer, Breland is able to adjust her day around her children.

After she bathed the kids and put them to bed, Breland read yet another comment online about the Mississippi Supreme Court's decision to allow the Personhood Initiative (MS 26) on the Nov. 8 ballot. It angered her. As a woman who became a mother because of in-vitro therapy, she was frustrated that people didn't understand the initiative, which would legally redefine the word "person" to include fertilized eggs.

"I'm going to stop it," she told her husband. At 9 p.m. on a Friday just a little more than a month ago, she started the website parentsagainstms26.com. She started a political action committee and gave speeches, sometimes spending six hours a day in her car. She picks up and distributes yard signs and drives to Oxford and Biloxi to address rallies and brainstorm with other activists.

Breland calls herself an unlikely activist. An attractive, thin blond with a sweet voice and pleasant smile, she isn't poor or disadvantaged, but in-vitro fertilization (IVF) therapy is expensive.

Part of her message is to erase the stigma attached to infertility.

"I was an infertility patient," Breland says. "It doesn't go away; it doesn't end. Infertility is more common than breast cancer. Everyone wears pink ribbons for breast cancer. Infertility is not shameful. It's a disease, and I got medical treatment."

She tells anyone who will listen that the Yes on 26 supporters pushing the measure are not telling the whole story. The 21 words in the ballot initiative leave too much room for judges and legislators to make choices about what happens in women's wombs, Breland says, and she doesn't trust them.

"Mississippi can't draw up voting districts without federal government oversight," she says. "How are we going to trust it to oversee medical treatment?"

The Personhood Initiative is short: "Should the term 'person' be defined to include every human being from the moment of fertilization, cloning, or the equivalent thereof?" That is how voters read it on the ballot. The secretary of state's website says if passed, the initiative would amend the Mississippi Constitution.

"There are so many things we don't know about this initiative," Olga Osby told a packed amphitheater at Jackson State University (JSU) during a town-hall meeting Oct. 12. Osby, a professor of social work, went through a long list of things the initiative leaves unclear.

• It makes no exceptions in cases of rape or incest, or for the life of the mother.

• It could potentially outlaw in-vitro fertilization and birth control.

• It could create criminal investigations into miscarriages.

• It could affect congressional districts for voting or other population equations.

Osby spoke about the unintended consequences of the simple wording, a common theme of Initiative 26 opponents.

"Mississippi is the only state with a personhood measure on the ballot this year," Osby said. "Similar propositions are planned in Florida, Montana and Ohio. Colorado faced it twice; both times, it died." Osby, who is black, showed the crowd a picture of a billboard depicting a young, African-American girl. The billboard read, "The most dangerous place for an African American is the womb."

"The pro-life movement has started linking race to the issue of abortion," Osby said. "I take it personally. We need to be careful. Race should not come into this. It's dangerous living in Mississippi."

She gave the crowd some statistics why: Mississippi is 50th in infant mortality. In Mississippi, a child is abused or neglected every 60 minutes, a child dies before her first birthday every 19 hours, and a child dies from gunfire once a week. One in five Mississippi children lives in poverty.

"Mississippi leads the nation in every negative health indication. We are 50th in quality of life for women," Osby said. "We are all pro-life. Mississippi has a great deal to do to care for children."

Osby suggested that improving life for all Mississippi residents will lower the number of women forced to face difficult decisions about pregnancy. "26 does nothing to improve lives of children," she said.

Dr. Randall Hines, a fertilization specialist who practices in Flowood, Miss., treated Atlee Breland's infertility. He also spoke at the JSU town hall meeting. "In America and in most democratic countries, we train people in health care," he said. "Those people invest time, money and energy in their training."

That's exactly why people seek out trained health care providers, he said, so all the best options are on the table. Hines said Initiative 26 would interfere.

"We will bring the government into the clinic and into the bedroom. When was the last time anybody here went to the Capitol for medical advice?" he asked the crowd.

State legislators and attorneys — not trained doctors — would interpret what the proposed amendment means, Hines said. He gave the example of a fertilized egg that gets stuck in the fallopian tube instead of implanting itself in the wall of womb. That type of ectopic pregnancy would be called a "person" if this measure passes, even though that "person" would never be born, he said.

"It can rupture and kill the woman," Hines said, but under Initiative 26, if a woman comes to an emergency room suffering an ectopic pregnancy, doctors might not legally be able to help her.

"When I go to an operating room and operate to save that woman, I'm committing homicide," Hines said.

"Approximately 20 percent of fertilized eggs result in children," Hines added. "Most fertilized eggs do not become children. All fertilized eggs are not equal."

The proposed amendment would damage the sanctity of the doctor-patient relationship. "It's a radical departure [from] the way we have become accustomed to practicing medicine," Hines said. "We want to make decisions based on science, based on experience, based on published studies."

Hines said the amendment could affect the legality and accessibility of birth control, with things like Plan B, a morning-after emergency contraceptive, and intrauterine devices, which prevent a fertilized egg from implanting in the wall of the uterus, being declared illegal.

Even some birth-control pills might be considered a threat to a fertilized egg.

"So many medicines have so many mechanisms. It's really complicated," Hines said. "Birth control can affect implantation. It's difficult science. I don't think law is the place to sort that out."

Several health-profession organizations are opposed to Initiative 26, including the Mississippi State Medical Association, the American Congress of Obstetricians and Gynecologists and the American Society of Reproductive Medicine.

Bear Atwood, a lawyer with ACLU Mississippi, says a personhood amendment would force doctors to practice law. "Could miscarriage be investigated as homicide?" Atwood asked the crowd at the JSU town hall meeting. "Maybe."

That is the answer to almost every question the vague Initiative 26 brings to mind, she said.

The trend is to charge women who have miscarriages with homicide, she said, citing a Florida example. Redefining the word "person" to include a fertilized egg would encourage prosecutors and politicians who already want to criminalize some miscarriages.

"There is a drive to unfund Planned Parenthood and make birth control difficult to obtain," she said. "Do we really want to ask young men and women to sneak across the border to get birth control?"

The Rev. Mark Anthony Williamson, pastor of New Hope Missionary Baptist Church, spoke briefly at the JSU town hall meeting. He said he was pro-life and opposes the Personhood amendment. He's not the only spiritual leader against Initiative 26. Others include the Rev. Hope Morgan Ward, bishop of the Mississippi Conference of the United Methodist Church, and the Rev. Duncan M. Gray III, bishop of the Episcopal Diocese of Mississippi.

Attendees at the JSU town-hall meeting wrote questions on index cards for the panel to answer. Most of the questions were practical economic concerns. Would a Personhood amendment mean that a father would have to start paying child support sooner?

"Maybe," Bear Atwood said. The far-reaching implications could affect inheritance laws also. Atwood said even donating sperm would have ramifications. Citizenship would also require redefining.

The questions kept coming. Would you have to get a Social Security number for your fertilized egg? Could you count your egg as a deduction on your tax return? "Now we get the IRS involved," Atwood said. "You guys want to bring the IRS in your bedroom?"

Atwood said there's a reason why church and state for centuries have used one simple moment in time to define personhood. "Birth is a concrete moment," she said. "They can put a time on it. They can put a place on it."

Dr. Paul Seago finds it absurd that under Initiative 26, a carcinoma could have the same rights as his teenage daughter. Seago, who practices gynecologic oncology in Jackson, spoke at a news conference Oct. 7 at the Capitol. He and Hines, the infertility physician who treated Atlee Breland, represented the group Mississippi Doctors Against 26.

They called Initiative 26 a law of unintended consequences. "We as doctors will have to deal with these consequences," Seago said. "This initiative is bad for the practice of medicine, bad for women's health and bad for Mississippi families."

Seago said the measure could eliminate common birth control options. Supporters of the measure have said otherwise, suggesting an emotional overreaction from opponents.

The doctors said identifying the moment of fertilization is not so simple.

"We have no test to know exactly when this happens," Seago said. "We also know that more than 40 percent of the time, the fertilized egg will fail to develop past this early stage, even in optimal circumstances."

In-vitro options for infertile couples could be illegal under the amendment, Hines said.

"Mississippians face some of the worst health outcomes in the nation," he said. "Health care teams with best practices should decide what is best, not politicians and lawyers."

If Personhood became law, malpractice premiums would rise for Mississippi doctors because they could face criminal charges for providing the best care for individual patients, Hines argued. He also pointed out that the measure doesn't allow pregnancy termination even in cases of rape and incest.

Jonathan Will, an assistant professor and head of MC's Bioethics and Health Law Center, moderated the symposium, "Exploring the Implications of Mississippi's Personhood Initiative." An embryologist explained the basic physiology of fertilization. Dr. Michael Tucker, who is an in-vitro fertilization pioneer and top expert, showed pictures of an incubator, a cell freezer and cryo tanks. He said 450 infertility clinics now operate in the United States.

"Our business is to bring two gametes together," he said. Of the 100 to 200 million sperm released, only 1 to 100 wind up in the fallopian tube. In-vitro fertilization doctors select the best quality sperm for the oocyte, or egg cell.

He showed a short video clip of a glass micro needle poking an egg to place a single sperm in its cytoplasm. He called this the beginning of the initialization affect. The first day, the zygote forms. The second day, it becomes a four-cell entity. On the third day, it grows to eight cells and is only about 120 microns wide. That's one-tenth of a millimeter, just less than the width of a strand of hair. Day four and five, the eight-cell entity becomes a morula. Then, sometime between the fifth and seventh day, the morula becomes the blastocyst.

"We treat these microscopic entities with respect," Tucker said. "For the first three days, the egg is running on its own maternal quest."

He said the sperm doesn't do much except be there during these early stages.

"The fertilization event is extremely extensive. It's not a simple discrete moment in time," he said. It takes 38 hours for the four-cell entity to emerge. It's 50 hours of development before the sperm has any involvement. At 70 hours of development, the entity blossoms into segments like a soccer ball. On the fifth, sixth and seventh days, the inner cell mass starts to form. "Everything before this is pre-embryo," Tucker said. "It's difficult to conceive of that entity as an individual."

Stephen Crampton, vice president of legal affairs and general counsel for Liberty Counsel, a national nonprofit policy group that opposes abortion rights, told the symposium that the use of terms is significant. "Definitions set the stage and set the tone," he said. As an example he said others had coined the term "pre-embryo" to reduce the status of an unborn child, and he called the term "reproductive rights" a "loaded euphemism."

But to him, "personhood" is simple. "Personhood is nothing more than to return to a principle foundation stone," he said. "There is a moment male and female chromosomes come together." The principle of personhood "would not automatically outlaw abortion," he said.

Glenn Cohen, assistant professor of law at Harvard Law School, jumped in via Skype on a large screen near the panel of experts.

"I'm going to call a spade a spade here," Cohen interjected. "You really think it will have nothing to do with abortion?"

Rebecca Kiessling, a family-law attorney based in Rochester, Mich., who identifies herself as "conceived in rape," addressed the legal implications of the law.

She suggested all parties would have to wait out the courts as the Personhood Initiative went through the legal system.

Caitlin Borgmann, a professor at City University of New York School of Law, challenged Kiessling and Crampton on their defense of Personhood. "I agree words are important," she said. "If you support this ... wouldn't you have to oppose all abortions?"

She talked about the many kinds of birth control and in-vitro fertilization methods that, if Crampton and Kiessling took wording seriously, should also be outlawed.

Kiessling argued that the proposed amendment is framework only. Borgmann and Cohen countered that the language is too ambiguous even for that. Fertilization, as Tucker explained it, is a week-long process that doesn't happen in a single moment as an egg grows from zygote to blastocyst.

"Which of the six things is it?" Cohen asked. "These are scientific definitions."

The moderator turned the panel to the observation that if passed, the personhood amendment would not be self-executing — it does not mandate any action.

"A principle is non-self-executing," he said. Mississippi has an existing statutory framework. The state Supreme Court could read the new amendment as applying to the entire code, and if that happened, Will said, it could possibly lead to the state closing in-vitro fertilization clinics. Kiessling accused him of "fearmongering."

Borgmann returned to the initiative's wording, positing that if you think fertilized eggs are persons, and you don't want a woman to abuse a child, then it would follow you would want to prevent a pregnant woman from drinking and should promote the prosecution of pregnant women who act irresponsibly. You would also believe fertilization clinics should be closed since they can discard embryos, she added.

Renee Whitley, a volunteer co-chairwoman of the national advocacy committee for RESOLVE: the National Infertility Association, a nonprofit organization, is a mother because of IVF therapy.

"IVF patients, they are you and me, your neighbor, your daughter. It's one in seven couples," Whitley said. "It's been 30 years since the first IVF cycle in Mississippi."

She reiterated what others had already said: The proposed amendment is not self-executing and will need regulating legislation. Crampton said a personhood amendment is not inherently inconsistent with legal IVF therapy. Mississippi law already protects the unborn child from intentional injuries, he said, citing statute 97-3-37 (Homicide; killing of an unborn child).

"That statute wouldn't apply any more" because the amendment would view a fertilized egg with the same rights of a person, said Amelia McGowan of ACLU Mississippi. Doctors in the state could face liability in numerous situations involving the presence of a potential fertilized egg, she warned.

"Do we want to interfere in doctor-patient relationships?" McGowan asked.

Other issues also could arise.

Under the proposed amendment, a one-cell zygote is a person, when it could become one or two or three entities, Tucker, the fertility specialist said, explaining twins and triplets. "It shows a lack of appreciation for the continuum of growth. Splitting is a physical, mechanical act that has nothing do with genetics. The idea that genetics is destiny is horrific."

Cohen said there could be legal implications: "If an embryo becomes two persons, who was it? Sue or Sally? Who was the person?" He said legal complications would follow.

"When you look at the scientific side of reproduction, you realize there is nothing simple about it," Whitley said. "Is freezing allowed? What about embryos that develop (abnormally) in a dish?" She wondered if police would investigate doctors for manslaughter in such cases.

"Do you need passports for embryos?" Tucker asked. Personhood is clearly a wedge issue that will tie up the Legislature and cost a lot of resources, he said.